NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 13-2635

____________

ALEX CHANDRA TAN,

Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA,

Respondent

__________________________________

On a Petition For Review of an Order

of the Board of Immigration Appeals

(Agency No. A088-646-878)

Immigration Judge: Philip Verrillo

__________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

March 26, 2014

Before: HARDIMAN, NYGAARD and ROTH, Circuit Judges

(Opinion filed: June 13, 2014)

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OPINION

____________

PER CURIAM

Alex Chandra Tan (“Tan”) petitions for review of the Board of Immigration 

Appeals’ final order of removal. For the reasons that follow, we will deny the petition for 

review.
2

Tan, an ethnic Chinese Christian native of Indonesia, entered the United States on 

April 24, 2003 as a nonimmigrant visitor and overstayed his visa. In February, 2008, the 

Department of Homeland Security commenced removal proceedings against him through 

the filing of a Notice to Appear in Immigration Court, which alleged that he was 

removable pursuant to Immigration & Nationality Act (“INA”) § 237(a)(1)(B), 8 U.S.C. 

§ 1227(a)(1)(B), as an alien who remained in the United States for a time longer than 

permitted. It is undisputed that Tan is removable as charged. Tan applied for statutory 

withholding of removal, INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), claiming that he was 

persecuted on the basis of his ethnicity in Indonesia and would be again if forced to 

return there. 

Tan testified at his hearing about several incidents of brutality perpetrated on him 

and his family by native Muslims when he was a child and teenager. Those incidents 

occurred in 1985, 1990, and 1995. In 2003, Tan’s wife’s uncle was robbed. As a result 

of these incidents Tan claimed that he has suffered both physically and emotionally. In 

support of his claim of persecution, Tan submitted numerous supporting documents, 

including a letter from Matthew Clark, M.D. indicating that the scars on Tan’s legs and 

head are consistent with injuries sustained in the manner he described; a letter from 

Lawrence B. Egbert, M.D. indicating that Tan exhibits symptoms consistent with posttraumatic stress disorder; a letter confirming his membership in a Christian church in 

Philadelphia; several newspaper articles regarding conditions in Indonesia; an affidavit 

from Dr. Jeffrey A. Winters, a professor with expertise in the area of Southeast Asia and 

Indonesia, stating his opinion on conditions in Indonesia for the ethnic Chinese 
3

community and religious minorities; and the State Department’s 2009 Country Report for 

Indonesia and 2009 International Religious Freedom Report for Indonesia.

On October 21, 2010, the Immigration Judge denied Tan’s application for 

withholding of removal. The IJ found Tan’s testimony to be credible and noted that his 

experiences in Indonesia could rise to the level of past persecution on account of a 

protected ground. Nevertheless, the Government had successfully rebutted any 

presumption of a future threat to his life or freedom. The IJ noted the State Department 

reports for Indonesia in the record, and concluded that they did not demonstrate a 

systematic, pervasive or organized persecution of the ethnic Chinese community in 

Indonesia. Rather, these reports noted efforts by the Indonesian Government to stop 

interreligious violence, a constitutional provision providing the right for all persons to 

worship according to their beliefs, and Indonesia’s official recognition of six faiths 

including Protestantism and Catholicism. Also, the record evidence did not show that 

Tan would be singled out for harm upon his return.

The IJ pointed out that he had considered the other background materials 

submitted by Tan, particularly the affidavit of Dr. Winters. The IJ did not agree with Dr. 

Winters’ assessment that current conditions in Indonesia supported Tan’s claim of a 

future threat to his life or freedom. In addition, the IJ observed that the last physical 

attack on Tan occurred long ago, that Tan lived in Indonesia from August, 1990 through 

April, 2003 without suffering any additional physical attacks, and that his three siblings 

and mother reside in Indonesia and have not been harmed.
4

Tan appealed to the Board of Immigration Appeals. On May 28, 2013, the Board 

dismissed the appeal. The Board agreed with the IJ that, even assuming that Tan had 

established past persecution, the presumption of future harm had been rebutted by the 

Government and the record evidence of current conditions in Indonesia. The Board 

additionally held that Tan had not demonstrated that he would be singled out individually 

for persecution upon his return to Indonesia, pointing out that he “remained in Indonesia 

for approximately 13 years after the church bus incident in 1995 and he and his future 

wife were not harmed at the hardware store in 2003.” A.R. 4. To the extent that the IJ 

appeared to have cited the wrong date in association with Tan’s description of a particular 

incident of harm, the Board found this error to be harmless. The Board also observed that 

Tan’s three siblings and mother all continue to live in Indonesia and have not been 

harmed since his departure in 2003. Last, the Board agreed with the IJ that Tan had not 

established a systematic, pervasive or organized pattern or practice of persecution of 

ethnic Chinese Christians in Indonesia.

Tan has timely petitioned for review of the Board’s decision. We have jurisdiction 

under 8 U.S.C. § 1252(a)(1), (b)(1). In his brief, Tan contends that the Board’s 

determination that it is not more likely than not that he would be persecuted in the future

is unsupported by substantial evidence. Specifically, Tan argues that he did not receive a 

sufficiently individualized assessment of his evidence of current country conditions. 

Petitioner’s Brief, at 13. In particular, the Board failed to even mention Dr. Winters’ 

expert opinion that there is a real and ongoing danger of violent attacks against the ethnic 
5

Chinese community in Indonesia. See id. at 25-26.1 Tan seeks a remand for further 

analysis. See id. at 14.

We will deny the petition for review. When the Board issues a separate opinion, 

we review the Board’s decision and look to the IJ’s ruling only insofar as the Board 

deferred to it. Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006). Here, the Board

summarized the IJ’s decision by specifically citing to it, and gave every indication that it 

was deferring to it. To overturn the Board’s decision, Tan must show us that his evidence 

was “so compelling that no reasonable factfinder could fail to find” in his favor. 

Immigration & Naturalization Serv. v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992).

Under INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A), withholding of removal is 

not discretionary: “The Attorney General may not remove an alien to a country if the 

Attorney General decides that the alien’s life or freedom would be threatened in that 

country because of the alien’s race, religion, nationality, membership in a particular 

social group or political opinion.” Id. The applicant must establish by a “clear 

probability” that his life or freedom would be threatened in the proposed country. 

Immigration & Naturalization Serv. v. Stevic, 467 U.S. 407, 429 (1984). Clear 

probability is defined to mean that it is more likely than not that an alien would be subject 

to persecution. See id. at 429-30. It is the applicant’s burden to prove his case. 8 U.S.C. 

§ 1231(b)(3)(C).

 1 Tan also contended that the agency applied the wrong standard, but we are confident 

that the agency applied the correct withholding of removal legal standard in Tan’s case.
6

In claiming a well-founded fear of persecution, the applicant must show that (1) he 

would be individually singled out for persecution or that (2) there is a pattern or practice 

of persecution of similarly situated individuals. Lie v. Ashcroft, 396 F.3d 530, 536 (3d 

Cir. 2005). If the applicant proves that he has suffered past persecution, “it shall be 

presumed that the applicant’s life or freedom would be threatened in the future . . .” 8 

C.F.R. § 1208.16(b)(1)(i). The Government may rebut this presumption by showing 

through a preponderance of the evidence a “fundamental change in circumstances” such 

that the applicant’s life or freedom would not be threatened, see id. at § 

1208.16(b)(1)(i)(A). As with any claim of persecution, the acts constituting persecution 

must be committed by the government or forces the government is either unable or 

unwilling to control. See Garcia v. Att’y Gen. of U.S., 665 F.3d 496, 505 (3d Cir. 2013). 

Substantial evidence supports the agency’s conclusion that the Government 

rebutted the presumption of any future threat to Tan’s life or freedom. As noted by the 

IJ, and affirmed by the Board, the State Department reports from 2009 do not support a 

claim that Tan’s life or freedom would be threatened in Indonesia. Overall, these reports 

demonstrate much better conditions in Indonesia since Tan was last harmed. The 2009 

State Department reports reflect governmental efforts to stop interreligious violence, and 

thus show that the Indonesian government does not condone or acquiesce in attacks by 

private actors. Moreover, we have held that the agency may rely on State Department 

reports. See Zubeda v. Ashcroft, 333 F.3d 463, 477-78 (3d Cir. 2003) (State Department 

country reports are most appropriate and perhaps best resource for information on 

political situations in foreign nations). 
7

Tan’s contention that the agency’s analysis of his evidence was not sufficiently 

particularized is based in part on Berishaj v. Ashcroft, 378 F.3d 314, 327 (3d Cir. 2004), 

where we held that generalized improvements in country conditions would not suffice to 

rebut credible testimony and other evidence supporting the specific basis for the alien’s 

fear of persecution. Berishaj is inapposite here because Tan’s claim, unlike the alien’s in 

Berishaj, is based generally on his Chinese appearance and his practice of Christianity; 

nothing in the record here indicates that Tan has been or will be subjected to harm based 

on a characteristic or action specific to him. 

Moreover, we are satisfied that the agency, and specifically the Board, properly 

considered Tan’s evidence, including Dr. Winters’ affidavit, in concluding that the 

Government rebutted the presumption that Tan’s life or freedom would be threatened in 

the future, 8 C.F.R. § 1208.16(b)(1)(i). There is no merit to Tan’s claim that the Board 

failed fully to consider the evidence that he proffered. Unlike in the case he cites in his 

Rule 28 (j) letter, Fed. R. App. Pro. 28(j), Indradjaja v. Holder, 737 F.3d 212 (2d Cir. 

2013), there is no indication here that the Board completely discounted or disparaged the 

Winters affidavit. Although the Board did not itself mention Dr. Winters’ affidavit, it 

cited page 13 of the IJ’s Oral Decision three times; on page 13 of the Oral Decision the IJ 

discussed Dr. Winters’ affidavit and explained why less weight had been given to it. 

That sufficiently indicates to us that the Board was aware of the Winters affidavit, 

particularly in view of the fact that Tan devoted over twenty pages of his brief to 

discussing it, A.R. 19-42. 
8

Relying heavily on Dr. Winters’ opinion, Tan contends that he is nevertheless 

able to demonstrate a clear probability of future persecution upon returning to Indonesia, 

even without the benefit of the presumption. We disagree. Dr. Winters observed that 

there has been no “massive upsurge of violence against the ethnic Chinese since 1998.” 

A.R. 234. In addition, there is no evidence that Tan experienced any problems rising to 

the level of persecution between 1995 when he last was harmed and 2003 when he 

departed Indonesia, and he testified that his three siblings and mother continue to reside 

in Indonesia, and that none of them have been harmed or threatened.

In sum, on this record, the agency properly concluded that Tan neither 

demonstrated a clear probability that he would be singled out individually for persecution 

upon his return to Indonesia, nor established the existence of a systemic, pervasive or 

organized pattern or practice of persecution of ethnic Chinese Christians in Indonesia.

For the foregoing reasons, we will deny the petition for review.